Wearable technology has brought in a new landscape in the emerging technology altogether, while we started moving towards using technology, through computers, communication devices like mobiles and tablets, Internet, little did we realise that we could physically wear technology enabled devices. It is interesting to note the way in which wearable technology has revolutionised the devices making it an essential part of one’s daily life. A majority of people be it students, professionals, senior citizens, women and the like make use of the wearable technology be it through smart watches, fitness bands, smart pendants, and the like smart devices. Given the kind of adaptability or flexibility and the features made available thereof by wearable technology, the wearable devices are being used for a variety of purposes whether be it personal, professional, social, medical and health and the like.
These wearable gadgets have started gaining significant value and can be considered a cross section of personalisation and technology, unlike the other gadgets, these facilitate interaction between human and machines since they can be physically worn by individuals.
ANALYSIS OF WEARABLE TECH
Given intrinsic nature of wearable technologies these are interconnected, they operate with the interphase of smart phone that act as a catalyst for the device and powers through the relevant apps. These wearable devices enable real time communication between the user and the device facilitating the access to information in real time. Further, these wearable devices are embedded with storage and data input capabilities.
WEARABLE TECH AND LAW
While wearable technologies focus not just on individuals but collect and process data as also interpret the data so as to take decisions on behalf of the user of such wearable technology. In this new world of wearable technology and devices distinctive legal policy and regulatory issues are emerging and this article intends to bring forward such cutting-edge policy regulatory Issues arising out of Wearable Technology and Law.
OWNERSHIP OF DATA-WEARABLE TECH
While one makes use of wearable device there is a lot of exchange of data between the user and the wearable device. This raises lots of questions regarding the ownership of such data. Another interesting scenario is whether such data belongs to the wearable device manufacturer or the service provider providing the said service regarding operations and maintenance of the device.
The privacy being the fundamental right it becomes essential for wearable devices to protect the privacy of the individual user. By and large the wearable technologies are increasingly impacting the personal and the data privacy of the user. The service provider offering wearable technology and devices can no longer sit on the fence since more focus has to be made on protecting and preserving the privacy of individuals.
Companies will have to adopt focal thrust strategies and policies in the light of wearable devices as employees are making their way into the workplace with these wearable devices. I think companies have to take customised and indigenous approaches while coming up with parameters on how and why the employees use wearable devices and also clearly state the rules of usage in ensuring adequate protection security measures are in place so as to comply with regulations and law.
While it is just not the privacy relating to wearable device that needs to be considered, the privacy issues with respect to the relevant mobile apps also need to be looked into, since these wearable devices are connected to such mobile apps. However, most of the users of the wearable devices are not cognizant of the privacy violation and infringements arising thereof.
Data protection is the tipping point that needs to be considered with regard to wearable technology and devices. One of the questions that arises is regarding the data collection and processing in a wearable device. Over and top of it a lot of sensitive and personal data is exchanged between the device and user bringing in the issue of data protection. In this context policies and the terms and conditions with regard to data collection, processing and data protection need to be defined and specific informed consent needs to be taken from the user. One another aspect that needs to be specifically considered is sharing of sensitive and personal data with third party since these wearable devices are often integrated with third parties. Apart from the above specific data protection principles and policies would have to be adopted in the relevant mobile application since the wearable devices are often connected to mobile applications.
WEARABLE DEVICES AND IT ACT
While wearable devices make use of exchange of data between users and them, this data is ultimately nothing but information in electronic form and can be considered as an electronic record under the Information Technology Act. Further, these wearable devices collect data and provide a service with respect to that data turning themselves to be referred to as Intermediaries under IT Act 2000. It is pertinent to note that the Intermediary guidelines along with the cyber legal compliance envisaged under the IT Act and the rules and regulations made under shall be made applicable to wearable devices and technology.
WEARABLE DEVICES AND GDPR
It is interesting to see wearable technology and devices get amenable under the EU GDPR. The questions of Wearable Devices as Data Controller as also Data Processor are likely to bring in new manifestations.
With privacy by design becoming a primary requirement of GDPR Compliance, wearable device shall be under the heat. Therefore, the processing of personal data under the GDPR would have to be specifically addressed and specific aspects with regard to personal data and data sharing to third parties need to be reviewed in the light of GDPR and wearable devices.
Given the corporate scenario the trend of the employees making use of wearable devices in offices and workplaces it is likely to bring about distinctive legal challenges specifically in the light of data retention.
Further, with right to be forgotten and right not be automatically profiled being the data subject rights under GDPR it shall be required to obtain consent before processing personal data to analyse the behaviour, preferences, health and medical conditions or predict work performance, fatigue and the like. Thereby taking consent through fine print shall be a mistaken notion and specific and communicated consent is the new message coming loud and clear under the GDPR.
WEARABLE TECH AND IP
The wearable technology raises a lot of intellectual property issues and challenges. With more and more wearable devices making their way into the market are setting out copyright, patent and design related issues. more and more innovations are likely to be seen in wearable technologies. Apart from these a lot of IP is also generated during the exchange of data between the user and the wearable Device. It will be interesting to see how the wearable technology company is going to protect its database from an intellectual property perspective. Given the wearable technology, there can be following Intellectual Property protection which they might use for protecting the IP surrounding the same. Trademark can be used for protecting the brand name of the wearable technology as also wearable devices. Copyright can be used to protect the source code in the wearable technology. Patent can be used for protecting the invention, methodology of the wearable technology. Design can be used for protecting the design element of the wearable technology.
Given the fact that wearable devices store, handle, process sensitive and personal data, confidentiality is the new tip of the iceberg. Since most of the wearable devices are mapped with the relevant mobile apps confidentiality becomes big time ground reality. Further, these wearable devices are being used by the employees in workplace, this may open up a new picture with regard to confidential issues with regard to corporate data. In this kind of scenario, the specific confidential agreements and policies need to be outlined so as to ensure appropriate level of confidentiality. At the same time wearable devices shall also share and disclose confidential data to various service providers in the context of providing services specifically for wearable devices and wearable technologies.
That being so any unauthorised disclosure of confidential data may bring in legal ramifications in the light of national legislations relating to data protection, privacy, and the like.
WEARABLE TECH AND CYBER CRIMES
Given the intrinsic nature of wearable technology, the cyber criminals are devising new ways of targeting wearable devices. We could also potentially see a lot of cyber crimes including intrusion of personal privacy, unauthorised access, and intrusion of corporate data, breach of confidentiality and privacy and the like with regard to cybercrimes in wearable devices. While there are already instances in the public domain relating to the misuse of Wearable Devices like the Google Glass Explorer, Cecilia, Abadie instanceOct 30th2013-violating California Vehicle Code Section 27602.
One of the key aspects that need to be considered in the light of wearable devices is the Physical safety of the individual using and wearing the wearable device. While it is just not the personal privacy that needs to be considered but ensuring physical safety also has to be considered. Physical safety in the sense is just not relating to any kind of physical harm brought in by the wearable device to the body including but not limited to any allergic reactions from sensors or the like brought in through wireless communication, but it also comprises of protecting the physical geographical position of the individual wearing the wearable device. This becomes important and critical since most of the wearable devices make use of location tracking features as also the GPS tracking mobile apps used in conjunction with the respective wearable device. However, in case the same is compromised or unauthorized accessed could endanger the physical safety of the wearable device user.
It is pertinent to note that wearable technology to be used for surveillance and monitoring by both state and non-state actors. This brings in privacy related concerns specifically lot of sensitive personal data and personal information is stored in wearable devices. However, given the intrinsic nature of wearable technology such sensitive personal data or Information could be intercepted and monitored by private players for doing a variety of activities including for marketing purposes. Addressing the concerns of privacy on one hand and surveillance and monitoring on the other hand shall be the test of the times. The scenario becomes more complicated in case such personal and sensitive data of the user lands in the hands of hackers and cyber criminals.
SMART WATCH CASE STUDY
It is interesting to note that data in smart watch was used to solve a murder case. This was in the year 2016 in Australia where a woman Myrna was murdered and her daughter in law called for help. It was found that the woman was dead by 6.30 pm and the daughter in law called for help only by 10 pm, which enabled her to wipe and clean up the evidence of the murder she committed. She claimed that her mother in law was murdered by men who invaded her house. However, the actual case broke open only after the forensic experts retrieved the digital data from the woman’s smart watch and analysed the same.
WEARABLE TECHNOLOGY AND EVIDENCE
In the above case study, we can understand that the data in the smart watch can be considered as an evidence for resolving legal cases. I believe that the data in wearable devices including smart watches is nothing but data in the electronic form that is E-records ultimately. This is nothing but digital evidence and can be legally admissible under Indian Evidence Act.
WEARABLE TECHNOLOGY AND JURISDICTION
I think the aspect of jurisdiction in the context of wearable technology is going to be ticklish. Given the nature of wearable technology the kind of Jurisdictional issues are going to be a completely different ball game altogether. Questions like where the data of the user is shared, processed to whom all it is shared will be a pandemonium. Another interesting aspect will be to understand which law will be applicable for any disputes arising thereof and which courts will have the jurisdiction to adjudicate such disputes is likely to bring in a lot of discussion debate among the law makers and various stake holders. However, will the jurisdiction outlined in the terms and conditions of such wearable devices be the guiding factor? This is likely to further complicate jurisdictional Issues. Over and on top how secure can be the storage of data and which enforcement agency can access it are also going to be knocking the door while going forward.
It is going to be interesting to analyse the landscape of liability in the context of wearable technology providers and service providers. In the absence of any national and international norms specifically in the light of wearable technologies I am of the opinion that the wearable technology and service providers should have in place reasonable security practices and procedures to protect sensitive personal data and personal information of the user while also having adequate measures to protect the privacy, safety of the user and also not indulge in any infringement of intellectual property rights and exercise care and caution and due diligence while discharging their obligations under the law and be duty bound to disable access to any illegal content. In this kind of scenario kinds of responsibilities to be followed by wearable technology and service providers will have to be specifically addressed as time passes by.
WEARABLE TECHNOLOGY AND CYBER SECURITY
As the wearable technologies are percolating with a rapid pace, cyber security is becoming the trigger point. Beyond the questions of privacy and data Protection, the cyber security relating to these devices is becoming an important vector and I believe that in this context cyber security law has to step in to address and mandate the appropriate cyber security obligations and cyber security legal compliance, specifically in the context of cyber security and wearable technology.
Given the bigtime adoption of wearable technologies in all walks of human life, the jurisprudence, legal, regulatory and policy aspects concerning wearable technologies will have to be dealt in a distinct manner. I believe that wearable technologies will bring forward interesting fragmented clusters of Cyber Law Development. I think this article will put forth a platform for discussions among various stake holders and will act as a key catalyst for the development of legal jurisprudence in the context of wearable technologies. I am of the opinion that the Information Technology Act, Rules and Regulations made there under is the Law on the eye while all of us are in the stage of voyage and on the cusp to address the legal nuances in the context of wearable technologies. Privacy, data Protection, cyber security, cyber crime, cyber legal compliance, jurisdiction, as also cyber law will emerge as critical instrumentalities in determining and defining the legal landscape of wearable technologies.
Adv. Sai Sushanth, Cyber Law Expert & Techno Legal Consultant
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CORONAVIRUS VACCINATION: TIME TO CONSIDER REMOVAL OF PATENT
The coronavirus vaccination process is well in progress, and life is creeping towards normalcy in a few nations. However, for certain nations, the pandemic is unleashing new degrees of decimation. India is wrestling with a cataclysmic second wave, reporting more than 20 million Covid cases and more than 250,000 deaths in the country amid boundless oxygen shortage.
The disparity in admittance to Covid-19 immunizations among rich and low-pay nations has gotten impossible disregarding. As indicated by UNICEF, 86% of all portions surrendered worldwide to 30 March were regulated to those in high-and upper-centre income nations, while only 1% of short of vaccine have been given to those on the planet’s most unfortunate. The Lower risk groups, the UK, the US and Israel are getting qualified for vaccination, while the vulnerable population somewhere else stay in danger of getting the infection.
As of now, eight types of vaccines are being utilized in general. No nation is utilizing every one of them however the more extravagant countries approach three or four, having put ahead of time requests. The vaccine producers are likewise ordinarily situated in these nations and have licenses that keep others from manufacturing and assembling them. The storing of vaccinations and medicines by well off nations, as the pandemic assaults monetarily hindered countries, has brought the issue of immunization licenses i.e. patent to the front.
At the global level, in October 2020, India and South Africa presented a unique proposition at the World Trade Organization (WTO) to defer drug organizations’ intellectual property (IP) rights for Covid-19 vaccines and medicines under the Trade-Related Aspects of Intellectual Property Rights settlement. The key idea behind this proposal was that the waiver would permit vaccine creators in more unfortunate nations to deliver vaccinations without confronting any legal activity from the organizations that hold licenses on the items. This specific proposal has recently gained steam, after US President Joe Biden reported his help, with trusts that this may make it simpler for some more nations to gain admittance to Covid-19 vaccinations.
This support by the US President has run into opposition from the drug business also known as Big Pharma and nations like Germany, stating this step won’t help in controlling the flare-up any time soon and will only hurt advancement and innovation. Biotechnology Innovation Organization president and CEO Michelle McMurry-Heath wrote in the Economist that this proposal of the patent being removed sabotages the very framework that created the life-saving science in any case and obliterates the motivator for organizations to face challenges to discover answers for the following wellbeing crisis.
The Indian government at home, however, isn’t just taking an alternate position, it has even requested that the Supreme Court not examine or notice the utilization of the state’s ability to abrogate protected intellectual property rights for fundamental medications or immunizations, stating that these could have “extreme and accidental antagonistic outcomes in the nation’s endeavors being made on a worldwide stage.” Whereas specialists believe that the Center’s remain against obligatory authorizing – which the Supreme Court had drifted as an apparatus it could use as a feature of its pandemic reaction – isn’t simply conflicting to its situation at worldwide forums, it could wind up endangering India’s endeavours to guarantee antibody value at the worldwide level. However, as the issues relating to urgent measures with respect to Covid-19 is sub-judice before the Hon’ble Supreme Court of India and different High Courts, therefore to be seen as to how the Hon’ble Courts deals with this issue.
For India to accomplish widespread vaccination, the prerequisite is of 1,878 million dosages — two portions each for 939 million adults in the country. As there are just two makers of the vaccination presently in the country— Bharat Biotech and Serum Institute of India — with their present creation limit at 80-90 million dosages each month, which could grow to 160 million portions by July 2021, there is an interest supply hole that should be spanned on a conflict balance.
To overcome this issue, there is a developing fuss to conjure the arrangement of ‘obligatory permitting’ under the Patents Act, 1970 as was done a decade ago for the treatment of cancer, malignancy.
The shortcoming of India’s vaccination program has gone to the front throughout the most recent month, as the fierce Covid-19 second wave detonated everywhere in the country. The shortage of vaccination in the country have been faced and the current speed would not permit India to arrive at herd immunity before the year’s over. Recently the Delhi Chief Minister Arvind Kejriwal has requested that the Center summon its forces to give compulsory licenses so immunization creation can be increase, determined to assist the states with vaccinating individuals throughout a more limited timeframe.
Patent rewards advancement by keeping contenders from essentially replicating an organization’s revelation and dispatching an adversary item. For patented product, the necessary permit arrangement permits the Indian government to concede fabricating rights to different makers without the assent of the proprietor, particularly during public crises. India’s first mandatory permit was conceded by the Indian Patent Office under the corrected 2005 Act to the Hyderabad-based medication maker Natco in 2017. It permitted the organization to produce and sell a comparable variant of Bayer’s medication Nexavar for the therapy of kidney malignant growth. The obligatory permit was conceded because the life-saving medication was not accessible at a moderate cost and Bayer had not made the medication to a sensible degree in India.
When an administration conjures a necessary permit, it awards consent to an individual to make or sell an innovation or item without looking for authorization from the patent holder. The topic of necessary authorizing in India includes two significant provisions under the Patents Act, 1970. The first is Section 92-as per this section the public authority can pronounce necessary permitting for any protected innovation amid a public or outrageous crisis. When an announcement is made, the regulator general of licenses can give licenses to any candidate. The patent holder will be paid an eminence fixed by the regulator general. Second is Section 100 of the Act-this section permits the Center or others to utilize the development or the innovation for governmental use whenever considered significant. This would permit Indian organizations to start fabricating while the eminence is being negotiated. On the off chance that the negotiation fizzle, it falls upon the High Court along with the jurisdiction to fix a sensible eminence.
Taking everything into account, specialists are proposing that through open permit strategy, antibody vaccine innovation could be moved from Bharat Biotech to different producers because the immunization was concocted with the help of the Indian Council of Medical Research (ICMR). Notwithstanding, comprehend that the ICMR’s help can measure up to banks giving asset backing to new companies. Accordingly, this doesn’t imply that one can remove the IPR of the immunization maker since Bharat Biotech is a separate company, not a part of the public authority. Indeed, even among various PSUs or government divisions, frequently lawful questions crop up because they are singular entities.
According to the current pandemic condition in the country, a humanitarian approach is the need of the hour and there probably won’t be any grievances or resistance if conventional standards are disregarded, regardless of whether at the degree of WTO or the homegrown front. On the other side, would it not be better that a reasonably balanced approach is embraced keeping in view the supply of vaccinations in the current times but also for the fulfilment of the same in the future?
WILL PHARMA COMPANIES SUFFER HUGE LOSSES?
At last, it comes down to the billion-dollar question. Pharma organizations have been contending that IPR and licenses are at the core of development, as is the speculation and cash that goes into it. Notwithstanding, will IPR waivers truly be uncalled for to enormous drugs and send them into misfortunes.
As opposed to what some are situating this tussle as a philosophical one around IPR, American Congresswoman Jan Schakowsky said during the TWN that it was basically about cash and benefits. “We are at battle with an infection, yet the thing we are seeing is making profits.”
It isn’t that an IPR waiver will leave pharma organizations poor the governments could take a gander at giving certain eminences to the trailblazer and originator organizations. For example, India gave its first mandatory permit permitted under its patent laws in 2012 for a malignant growth drug Nexavar made by Bayer.
Right now the patent situation is a “barbarous” one, with an “impetus structure adjusted to enormous drugs.” We need to move away from exclusive methods of licensing to a more open-source method of making medications.
The special cases being taken up today to guarantee all-inclusive vaccination is simply a transitory measure to pad individuals at the most for a very long time. According to clinical specialists, another portion or two of an improved rendition of the immunization will be along these lines should have been trailed by an antibody vaccination forever. Additionally, an immunization for kids under 18 years is still to be created.
It is similarly imperative to comprehend and not invalidate the way that the issue of licensed innovation rights was coordinated into the exchange plan. In the pre-WTO period, agricultural nations including India took into account the assembling of the protected item by different producers through an adjustment of the assembling interaction. Accordingly, these organizations likewise began trading medications hence making benefits. The TRIPS Agreement consequently got basic in settling exchange disagreements about protected innovation rights at a worldwide level. Consequently, nations like those in the European Union, which have bookings for loosening up IPRs, might be persuaded with the confirmation at WTO that the meds for fix and avoidance of the Covid would be utilized uniquely for homegrown use and not for trades.
In India, endeavours ought to be made for the move of innovation from organizations like Bharat Biotech to producers with the potential and required ability. In any case, brand value ought to be with Bharat Biotech with a kind of establishment plan. The organization’s R&D use ought to be remunerated through a proper evaluating strategy.
Though numerous legislatures across the world seem uncertain on whether to answer the call and on the off chance that they do — would it truly resolve the worldwide deficiency of vaccination and medicines, particularly in more unfortunate and low pay nations? Stand that the world takes on the issue will be a critical decision in fighting the battle against the coronavirus surge.
As of now, eight types of vaccines are being utilised in general. No nation is utilising every one of them, however the more extravagant countries approach three or four. The vaccine producers are likewise ordinarily situated in these nations and have licences that keep others from manufacturing and assembling them. The storing of vaccinations and medicines by well-off nations, as the pandemic assaults monetarily hindered countries, has brought the issue of immunisation licences i.e. patent to the front.
‘What are the key learnings that hospitality industry can take from current conditions?’
The world is currently battling with the unprecedented effects of the COVID-19. With the UN claiming it to be a crisis on humanity like never before, it has put our social fabric and cohesion under tremendous stress. In the face of this fatal virus, the economies worldwide have come to a standstill, making the travel restrictions and social distancing policies the new normal.
Impact of the Outbreak: The hospitality industry has taken a massive hit around the globe with occupancy rates dropping by 59% in US hotels alone. Significant declines are also forecasted in average daily rate (ADR), occupancy, demand, and revenue per available room (RevPAR) for 2020.
Current forecasts predict a deep economic contraction in the first half of the year, followed by a bounce-back in the latter half. However, there could also be a prolonged economic uncertainty that would resist a sharp bounce-back. As hotels counter this economic crisis, there will be a dire need to assess the business continuity and operational challenges, both for the short and long term, and understand the impact on Cash, Working Capital, and Profitability.
The severe situation had stalled travel plans for the majority of the people around the world but it is expected that hotel bookings will see a recovery after September 2020. However, it is also predicted that people will be more inclined towards traveling domestic rather than international. Thus, it is imperative for the hotels to be prepared before the business starts to ramp up and use this interim period as an opportunity to overhaul their legacy systems.
THE NEED OF THE HOUR
Regain Guest Confidence: The core of the relationship between any brand and its consumers is “the trust”, and thus recapturing guest confidence should be the primary step for any brand amidst this pandemic situation. At a time when consumer confidence is at an all-time low, communication will play the lead role in re-assuring the guests of the safe environments at different hotels. Also, within the hotel premises, the way hotels empower their guests with increasingly relevant and timely information, will also hold the key to future.
Revisit Hospitality Offerings:Hotels will need to review their existing service offerings to adapt to the “new normal” and provide a touch-free experience to their guests when they arrive at the property. To achieve this, Hotels will need a transformation in their daily operations to provide an experience that would ensure that both the guests and the hotel staff are in safe hands.
Employee Well Being: A turnaround is also expected in the hospitality industry at the employer level. The current working models need to be re-evaluated for efficiency with ‘employee wellbeing’ positioned higher than ever in the hotel’s priority list. Providing them with safety kits and eliminating the different touchpoints while serving the guests are the major needs of the hour.
Regulatory Compliances Liabilities: In this new environment, hotels need to adopt new practices to regulate the environment in which the business happens. Once the operations begin, stern measures on sanitation and hygiene will be very important and hotel properties will have to not just be aesthetically clean but also clinically clean. It will also be important to ensure that the mandatory regulatory guidelines such as social distancing are being followed at their properties
OPPORTUNITIES TO UPGRADE THE SKILL SET
Up-skill: Creating opportunities for hotel employees to add value to their skill-sets could build confidence in hotel companies, as layoffs can be expected by all major and minor hotel companies. Hyper-local hotels may see the largest number of layoffs due to the popular asset-light model, where large number of operating units, scattered across countries, could be written off all at once. This will bleed out a vast number of hospitality employees into an already difficult market. Individuals who can upgrade their skill sets by way of enrolling in speciality-specific courses could benefit greatly.
Re-skill:Offering routes such as ‘Recognition of Prior Learning’ opportunities to qualified hospitality front-line professionals could accelerate the process in re-skilling individuals, hence preparing them for roles in hotels and other hospitality-related operations in an environment where lean, yet skilled operations will be required.
Hygiene and sanitation remained a recurrent sub-theme throughout the responses, be it about foreseeable consumer behaviour or learnings for the industry and educators or trainers. The issue of hygiene has been well documented in tourism and hospitality literature. However, for a developing country like India that deals with issues like over-crowdedness and congestion, it is too serious a concern to be overlooked. where the researchers have speculated presence of SARS-COV-2 in human waste water becomes more consequential if not managed effectively. The seriousness of this issue can’t be emphasised enough and regardless of the type and size of the establishment, next crucial aspect that is likely to govern the survival would be the presence of standards of waste management and effective sanitation practices visible in all forms of hospitality operations.
Hospitality management must consider wearing masks mandatory until a sustained solution, for instance the most contemplated solution+COVID-19 vaccine, is achieved. Irrespective of type of operations, managers must consider creating dedicated task forces among employees to address hygiene issues and related training and awareness creation. Basing on the responses received it seems clear now that there is stark need of formulating national standards for tourism and hospitality enterprises, and their implementation and monitoring should be effectively carried out, failing that should invite relative penalties. The need of national standards also resonate with the recommendations made by authorities/researchers. One such standard practice could be mandatory temperature checking and its record keeping at the entry and exit points of work places and institutions.
The notion of retaining optimism and hopes of revival remained high. This was particularly visible with the responses pertaining to the manpower development. This viewpoint of the experts in tourism and hospitality may be attributable to their rich experiences, where they must have observed highs and lows in the industry. Although COVID-19 presents an unprecedented case before all the sectors, in that the reduced demand and revenues are obvious consequences, which can resonate with the previous crises that also had detrimental effects. However, in previous health (e.g. SARS, Swine Flu, MERS, and Ebola) or other sorts of crises (acts of terrorism, natural calamities) travellers mostly had alternatives at their disposal. This time the entire planet has been held hostage to this severe pandemic, which has brought an absolute halt on various activities, leisure sector being the prominent casualty. From the responses it is evident that alike educators, industry managers too didn’t shy away from highlighting the human resilience and seemed hopeful towards the eventual recovery, meanwhile reassuring individuals who have or intend to pursue careers in the industry.
Budgets and Capital Expenditure:Hotel owners should consider whether the existing rights of the owner in relation to the setting, approval and variation of budgets and decisions relating to capital expenditures are adequate or should be enhanced in order to give the owner greater say on decisions relating to expenditure that is considered necessary or desirable in light of Covid-19, for instance investments towards improving the health and safety components of the hotel.
This is extremely important from a hotel owner’s perspective because: (a) they have the obligation to fund the hotel’s working capital and capital expenditure requirements; and (b) the owner’s performance termination rights will typically be linked to the level of operating profit generated by the hotel operator relative to the budgeted operating profit. If the owner does not have adequate rights in respect to the setting of the budget and approval of variations from the budget and sufficient control over the budget process, then the operator could provide for a lower operating profit in the budget and thereby ensure that it does not fail the operating profit test (this is over and above a general exclusion which an operator may include for force majeure events).
Additionally, it would also be worthwhile to consider including a mechanism thereby the owner and operator have to mutually agree to adjust the budgets and capital expenditure for a specific period in the event of a force majeure event occurring and the operator should not have a unilateral right to make any such adjustments.
Compulsory Acquisition:During recent times, there have been instances where government authorities in certain countries have taken over hotels to use them as quarantine facilities for Covid-19 patients. While these instances may not be common, it gives rise to another scenario which may need to be covered in the condemnation provisions of hotel operating contracts. Further, as the hotel owner is unlikely to receive any substantial compensation from the government, the rights of an operator to receive any portion of the compensation received from the government should also be considered and re-examined and specific carve-outs may need to be agreed. Consideration should also be given to the hotel’s insurance policies and whether any conversion of use of the hotel into a quarantine or other medical facility may vitiate these insurance policies.
Public Health Emergency Obligations:Hotel operating contracts do not, usually, contain any provisions on: (a) the procedures to be followed by the parties; and (b) the rights and obligations of each party, in the event of a public health emergency occurring in the hotel (for example, a guest or staff testing positive for Covid-19). It is important that these gaps are filled to ensure that there is no ambiguity on the roles and responsibilities of the parties and thereby avoiding the blame-game.
HOTEL MANAGEMENT REQUIRES LIFELONG LEARNING
Albert Einstein said, “Once you stop learning, you start dying”, and the saying has never been truer than in the current context. Even if you were a seasoned hotel manager, the COVID-19 crisis has likely challenged all of your past experience and knowledge about the profession. In the face of uncertainty, hoteliers have had to relearn some of the key cornerstones of the industry, such as staffing and revenue management, both of which underwent major transformations because of COVID.
As a result, web traffic on hospitality-related educational platforms nearly doubled in the past few months. Instead of wallowing in self-pity, hoteliers understood that they needed to take action in order to adapt and save their business. In a great showing of courage and resilience, most of them took the matter into their own hands and kept looking for ways to survive amidst the plethora of constraining safety measures and lockdowns. This gave birth to new innovative strategies for hotels to generate revenue.
HOPING FOR A BEGINNING OF AN END
We can say that,
Post Covid19, organisations will surely redesign/reorganise their business models based on the loss handled and market conditions for the future. Workforce reduction is a possibility however smarter organisations may look at utilising the available workforce in newer roles as per the need of the business. Its (sic) important to understand that hospitality is all about human connections and people will be at the heart of everything we strategize.
COVID-19 is pushing the industry to manage, adapt, and respond to the uncertainty and risk associated with this global health incident. Managing the guests’ & employees’ safety and delivering as per guests’ expectations will not be considered a competitive advantage, but rather an industry imperative. Enterprises in the hospitality industry should partner with the right technology solutions providers to ensure a foolproof digital transformational strategy for the future.
RELAXATIONS PROVIDED UNDER GAS CYLINDERS RULES, 2016 TO FAST-TRACK IMPORTS
The relaxations in rules will fast-track approvals for imported cylinders and pressure vessels for storage and transportation of medical oxygen.
Government of India has reviewed the existing procedure for approval of global manufacturers for importing oxygen cylinders by Petroleum and Explosive Safety Organization (PESO). In view of the COVID pandemic, PESO shall not carry out physical inspection of global manufacturers’ production facilities before grant of such approval. Now, such approvals shall be granted online without any delay on submission of manufacturer’s particulars; ISO certificate of manufacturer; List of Cylinders their specifications, drawings & batch number; Hydro test certificate and Third-Party inspection Certificate. Every foreign manufacturer/ importer who wants to import oxygen cylinders is required to apply for import permission through PESO online system.
In view of emergent situation, procedures are relaxed and the following process is to be followed wherever due to unavoidable circumstances or urgencies, consignment of oxygen cylinders, ISO containers or PSA plants or its related equipment have already arrived in India, without taking import permission from PESO. The filling permission for these cylinders will be issued based on the following relaxation in the rules. Same procedure will apply for import of further such equipment in case the online approvals have not been taken.
As such, Certification of PESO will not be mandatory pre-shipment. However, the certification of PESO will be required before use of the oxygen cylinders which entails weight and hydro testing. The Indian Missions should however ensure that the oxygen cylinders should comply with India or International standards before shipment. In case of filled cylinders, the agency exporting to India shall certify that the oxygen filled in the cylinder is of such purity and concentration that is fit for medical use. The certification shall be attested by the Indian Mission in the exporting country. Further, soon upon receipt in India, such filled cylinders shall be inspected on sample basis by an empanelled agency of PESO and certified as fit for medical use.
All the filled cylinders must be verified for quality of gas filled therein under the supervision of medical/ Food and Drugs Controllers and if quality of gas conforms to their requirement of medical oxygen, cylinder may be sent directly to hospitals for use. On emptying out the oxygen, cylinder shall be sent to filler and the process as given above shall be followed.
Guidelines for PSA installations at hospitals with filling facility or at COVID centers:
A. PSA plants where generated oxygen is directly supplied to hospital/ no filling of cylinder is taking place; does not need any permission or license under rules administered by PESO and can be allowed.
B. If PSA is attached with a compressor and filling of oxygen cylinder is to take place, hospital must notify it to PESO with following information:
a. Number of filling points.
b. Number of cylinders to be stored at site
c. An SRV shall be mandatorily installed in the pipeline outlet to compressor.
d. Well ventilated location with adequate illumination.
e. Before filling the cylinder, shall be examined/ cleaned for absence of any Carbonaceous grease and valid hydro test certificate (tested cylinder at 225 Kg/Cm2 hydrostatically)
f. Filling operation shall be carried out under supervision of a competent & experienced person.
g. The space for filling of cylinders to be isolated and maintain clearance of 1m from filling point on all the sides.
C. Any COVID centre may utilize liquid cylinders on board with vaporizer for supplying of gaseous medical oxygen through pipeline or for filling cylinders in open places are permitted subject to conditions stipulated under Sr No. (B) above for PSA and information be submitted to PESO.
These relaxations shall be valid for a period of 6 months or till further orders of Department for Promotion of Industry and Internal Trade, whichever is earlier
RESOLUTION OF PENDING ISSUES OF EXPORTERS WOULD GIVE IMPETUS TO TRADE, SAYS EEPC INDIA CHAIRMAN
The value of engineering goods shipments registered a year-on-year growth of 238.27% during April, 2021 owing primarily to lower base effect and strong demand from traditional markets. This shows recovery in external trade is very much on track and improved trade outlook, said EEPC India Chairman Mahesh Desai.
“As vaccine coverage rises in Europe and North America we see further increase in demand. Shipments to China have already been quite healthy and we expect the trend to continue,” he noted.
As per data released by the government, India’s overall merchandise exports in April 2021 was US$ 30.63 billion, a jump of 195.72% over US$10.36 billion in April 2020. As compared to April 2019, exports in April 2021 exhibited a positive growth of 17.62%.
Mr Desai said that the recent surge in Covid cases has some downside risks to the growth as various state governments have imposed lockdowns and curfews to contain the spread of the virus.
“This has caused a slowdown in inter-state movement of goods and shortage of manpower. In order to address this, we urge the government to classify the export sector as the essential services,” he said.
The EEPC Chairman noted that the government has largely taken a very balanced approach to deal with the health crisis focussing both on saving lives and protecting livelihood.
In a very encouraging development, Department of Commerce has taken up various issues of exporters with the Finance Ministry for their early resolution. Some of the pending issues pertain to Remission of Duties and Taxes on Export Products (RoDTEP), Merchandise Exports from India Scheme (MEIS) and Inverted duty structure.
“Once resolved, it will further provide impetus to the export sector,” said Mr Desai.
Given the growth trends in previous fiscal and April this year, it is hoped that merchandise exports could touch $400 billion in FY22. The value of exports in the first week of May was up by almost 9% (over the same period last year) pointing to a positive trend, the EEPC Chairman concluded.
RBI SUPPORTS MEASURES TO HELP SMALL BUSINESSES HIT BY SECOND PANDEMIC WAVE
Besides providing liquidity support to small borrowers, the measures announced by RBI would boost confidence of the trade and business, said Desai.
“Over the last few months, India’s merchandise exports have shown an upward trend but the surge in new Covid cases has posed some downside risks. The relief measures announced by RBI for MSMEs should mitigate those risks,“ he added.
One of the key focus areas of the central bank was facilitating easy credit for entities in the health sector including vaccine manufacturers and suppliers of oxygen and ventilators. For this, an on-tap liquidity window of Rs 50,000 crore has been announced. This will help strengthen Covid infrastructure in the country and ensure that the impact of the second wave of the infection on the economy is minimal.
Another key support measure announced by the RBI was Resolution Framework 2.0 for Covid related stressed assets of individuals, small businesses and MSMEs. This is a major relief for small and medium players, noted Desai.
Among other things, the Production Linked Incentive (PLI) worth Rs 6,238 crore for air conditioners and LED lights would certainly give a big boost to local manufacturing. The various PLI schemes are being seen as the mega policy plan of the government to make India a global manufacturing hub, said Desai.
He noted that the PLI schemes were also being considered one of the major pull factors for MNCs looking to diversify their supply chains “This will not only bring fresh investments into the country but also offer opportunities for local firms to enter into technical tie-up and form joint ventures,” he said.
The government has so far cleared nine PLI schemes for different sectors. Both local and foreign players have shown keen interest in the scheme. Overall, an outlay of Rs 1.97 lakh crore has been lined up for 13 key sectors. All the schemes together are projected to boost India’s output by over US$ 500 billion in the next five years.
The additional manufacturing capacity coming under the PLI scheme would have a huge multiplier effect and help build a robust supply chain network linked with global giants. It will positively impact the SME sector and spur growth and employment, said Mr Desai applauding the policy action.
INDIA’S TRADE PRFORMANCE CONTINUES TO BE IMPRESSIVE IN APRIL 2021
Merchandise exports accelerate by an impressive 195.72 per cent over April 2020 levels and 17.62 per cent over the April 2019 levels.
India’s export performance continues to be impressive in April 2021 with merchandise exports accelerating by an impressive 195.72 per cent over April 2020 levels and 17.62 per cent over the April 2019 levels.
Merchandise export, excluding POL and Gems & Jewellery, have increased by 160.24% in April 2021 over the same period of 2020-21 and by 20.47% over same period of 2019-20.
The Economic recovery is also visible in the rising import growth of 167.05 per cent and 7.87 per cent during April 2021 over same period of 2020-21 and 2019-20 respectively.
Service exports estimated for April 2021* are USD 21.17 Billion, registering a positive growth of 28.68 percent vis-à-vis April 2020. The estimated value of services import for April 2021* is USD 13.00 Billion, registering a positive growth of 39.75 percent vis-à-vis April 2020. The estimated value of Net of services export for April 2021* is USD 8.17 Billion registering a positive growth of 14.28 percent vis-à-vis April 2020.
COMMODITY-WISE GROWTH TRENDS
The commodities/commodity groups which have recorded positive growth during April 2021 vis-à-vis April 2020 are Gems & jewellery (9271.21%), Jute mfg. including floor covering (1684.62%), Carpet (1352.68%), Handicrafts excl. handmade carpet (1275.46%), Leather & leather products (1201.44%), RMG of all textiles (927.08%), Cotton yarn/fabs./made-ups, handloom products etc. (618.26%), Man-made yarn/fabs./made-ups etc. (587.01%), Other cereals (451.39%), Ceramic products & glassware (444.45%), Electronic goods (372.62%), Oil meals (279.49%), Cashew (260.48%), Mica, Coal & other ores, minerals including processed minerals (241.21%), Engineering goods (238.27%), Petroleum products (191.53%), Tobacco (187.4%), Cereal preparations & miscellaneous processed items (174.61%), Iron ore (172.16%), Oil seeds (169.04%), Meat, dairy & poultry products (148.81%), Tea (146.31%), Marine products (107.94%), Spices (97.56%), Coffee (75.02%), Organic & inorganic chemicals (68.54%), Rice (61.64%), Plastic & Linoleum (51.89%), Fruits & vegetables (25.4%) and Drugs & pharmaceuticals (23.43%).
Iron Ore and Drugs & Pharmaceuticals exports have been consistently growing throughout 2020-2021 and April 2021. Rice export has been consistently growing during 2020-2021 and April 2021 except for the month of April 2020. Cereal preparations & miscellaneous processed items, Other Cereals and Oil Meals exports have been consistently growing since June 2020. Jute Mfg. including Floor Covering and Carpet exports have been consistently growing since July 2020. Handicrafts, excl. handmade carpet, Cotton Yarn/Fabs./made-ups, Handloom Products etc., Ceramic products & glassware, spices and ‘others’ categories exports are growing consistently since September 2020. Mica, Coal & Other Ores, Minerals including processed minerals export is consistently growing since October 2020.
Sectors such as Leather & leather products, Man-made Yarn/Fabs./made-ups etc., and Marine products which had been exhibiting negative growth during the pandemic (2020-2021) have picked up from March 2021 onwards.
*Note: The latest data for services sector released by RBI is for March 2021. The data for April 2021 is estimates, which may undergo revision with subsequent releases of RBI.
Commerce Minister Piyush Goyal had a virtual meeting with Ambassador Kathleen Tai, US Trade Representative on 14th May 2021. The meeting focused on increasing vaccine availability in an inclusive and equitable manner to combat the global pandemic caused by Covid-19. The proposal of India on waiver of certain TRIPS provisions to increase global vaccine production in order to take on the challenge of vaccinating the poorest of the poor and save lives was also discussed. The Minister thanked the USTR for the US announcing its support for India’s proposal. The Minister mentioned the supply chains for the vaccine manufacturers must be kept open and unbridled as the entire world is in dire need of vaccines. Both sides agreed to work towards the common resolve of increasing vaccine availability and saving lives.
GOYAL LAUNCHES ‘DGFT TRADE FACILITATION APP’ FOR PROVIDING INSTANT ACCESS TO EXPORTERS/IMPORTERS ANYTIME, ANYWHERE
Commerce & Industry Minister Piyush Goyal says that the trade facilitation app is ready for Industry 4.0.
Commerce & Industry Minister Piyush Goyal recently launched DGFT ‘Trade Facilitation’ Mobile Application, for promoting ease of doing business and providing quick access to information to importers/exporters.
Speaking about the app, Goyal said that in the post-covid world, tech-enabled governance will play a key role in determining India’s growth and competitiveness. He said that a Single-window approach has enabled tech transformation of service delivery in India. It has liberated last-mile beneficiary from location based constraints, and enhanced ease of doing business. He said that Progress in technology helps develop the economy and strengthen Indian firms in the competitive global market. “We desire to move towards paperless, automated processing systems, simple procedures for trade players, online data exchange between departments & digital payments & acknowledgements.”, he added
Lauding the initiative of DGFT, Goyal said that the new Trade Facilitation App is a step in the right direction as it provides easy, omni-channel access to various trade related processes and enquiries at the touch of button. He said that truly imbibing Prime Minister’s vision of Minimum Government, Maximum Governance, DGFT is standing up for businesses as a true leader with e-issuance of certificates, QR scan process to validate documents. It will reduce transaction cost and time for imports and exports related processes, and usher in transparency. He said that ‘Trade Facilitation Mobile App’ is a symbol of India’s Idea of Aatmanirbharta – Making governance easy, economical & accessible, as it symbolises shift in traditional thinking.
Shri Goyal said that Trade facilitation App is READY for Industry 4.0, as it provides
• Real-time trade policy updates, notifications, application status alert, tracking help requests
• Explore item-wise Export-Import policy & statistics, Track IEC Portfolio
• AI-based 24*7 assistance for trade queries
• DGFT services made accessible to all
• Your Trade Dashboard accessible anytime & anywhere
The Minister said that ‘Mobile’ India creates an international trade opportunities for MSMEs and Foreign players. It will enable creation of a quality conscious and cost-competitive domestic industry. Further, it will significantly contribute to export target of $1 Trillion by 2025 and GDP target of $5 Trillion. He said that for advanced App development, more inputs & ideas of all stakeholders should be invited for further refinement which will help in expediting our technological transformation. Shri Goyal also called for engagement with technology and language specialists to develop Governance Apps in various regional languages, which will support the spirit of oneness amongst our citizens.
The new Mobile App of DGFT provides the following features for ease of the exporters and importers –
• Real-time Trade Policy Updates and Event Notifications
• Your Trade Dashboard Anytime Anywhere
• Access all services offered by DGFT in App
• Explore Item-wise Export-Import Policy and Statistics
• 24×7 Virtual Assistance for Trade Related Queries
• Track your IEC Portfolio – IEC, Applications, Authorizations
• Real-time Alerts on status of applications
• Raise and track help requests in real-time
• Share Trade Notices, Public Notices easily
The App will be available on Android and iOS platforms. The App can also be downloaded from the DGFT Website (https://dgft.gov.in). It has been developed by the Tata Consultancy Services (TCS), as per the directions of the Directorate General of Foreign Trade (DGFT).
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